Book Review: Kysar’s Regulating From Nowhere

Regulating From Nowhere is a beautifully written book that would pay dividends even to the casual reader looking for a sharp treatment of the state of environmental regulation in America. Beneath the surface, though, it is a powerful argument that our environmental law’s “redacted script”—wherein all our legislated texts of the 1970s, ‘80s, and ‘90s lead inexorably to welfare economics and its reigning orthodoxy, cost-benefit analysis—is leading us away from our ideals. Kysar makes this argument energetically, even passionately at times. He shows how, time after time, in context after context, cost-benefit analysis as it’s been structured has failed us in our search for any truly objective measurement of our national commitment to environmental quality as against, say, individual autonomy. The ideologues who keep insisting still today that “willingness to pay” surveys or the other crude tools economists are taught to use as metrics of valuation are all we have to interpret these statutes will find this book disconcerting, I’m sure. For it makes no apologies in arguing that we among the living and powerful today have deeper obligations—obligations to other cultures, future generations, and to nonhuman life—than our ‘willingness to pay’ will ever reflect.

Still further below the surface is an incipient attack on the “value monism” inherent in any conception of “public welfare” yet devised. This is easily the boldest aspect of a bold book and I hope it gets a wider audience than, say, the few hundred legal and economics academics who dwell on the use of cost-benefit analysis in regulation today. A value monist, in Kysar’s view, sees “environmental values” like clean streams, biodiversity, or functioning wetlands, as fungible benefits that can and ought to be liquidated in some way so that they can be allocated to the highest bidder (usually, the highest bidder of money). Pluralist or “expressivist” versions of value deny that any such translatability can be achieved, in theory or in practice. Places and times are unique in their valuations of “organic unities” like clean streams, estuaries, or biodiversity, an argument made by philosophers like G.E. Moore and David Ross many, many years ago. The problem, of course, is that that mode of valuation is essentially inaccessible to the modern administrative agency. How would an agency like EPA, the legal embodiment of a large, aggregative jurisdiction, sort out the organic unities that are to be valued as wholes from the commodities or commodity storehouses (like coal mines, corn fields, and cows) on which our modern economy rests? If EPA’s actual record of regulation prior to the onset of its now enveloping cost-benefit neuroses is any measure, administrative agencies like EPA are just not the kind of institution where organic unities go to be properly valued.

Still, it is precisely a monistic mindset, Kysar argues, that leads people like Cass Sunstein, Robert Stavins, and Richard Posner to view “precautionary” approaches to risk regulation as hopelessly confused when, in fact, they are highly practical. Kysar argues that the precautionary approach to risk regulation, properly understood, is simply the collective control of human conduct prior to the attainment of clear and convincing proof that that conduct is harmful—an approach our early environmental laws (and their interpreters) understood and often took. Best achievable technology mandates, so common in these laws, were once the tools of just such an approach. Today they are buried under a mountain of cost-benefit analyses.

What makes this book so worth reading no matter who you are is its dedication to both principle and practice. Not content only to spar with “public intellectuals” like Sunstein or Posner, Regulating from Nowhere injects its defense of the precautionary approach directly into several recent episodes in which cost-benefit analysis has featured prominently and has failed us. From cooling water intakes and the billions of organisms they eradicate annually to intergenerational discounting and climate change, Kysar weaves his version of the precautionary approach into contemporary regulatory disputes and raises new questions (no mean feat given how overdone the subject seems to me). One of its shrewdest moves is the proposal of an “Environmental Possibilities Act,” complete with the bill’s text, which would prohibit any federal agency’s use of monetized cost-benefit balancing to fully satisfy the demands of its environmental, health, or safety statute(s). It is just the sort of conversation builder that books from legal academics ought to include today.

In the end, Kysar knows we are stuck with cost-benefit balancing by our administrative state. The only windmills he seems to be tilting at are the ones that aren’t being built today even though better development of wind energy would be both precautionary and cost-justified. And it probably makes good argumentative sense to show just how incomplete and misleading cost-benefit analysis has grown in the hands of its disciples. Unfortunately, though, the categorical imperatives here—if there are any—are formless and inchoate. It seems to me that most Americans do not assign much intrinsic value to clean streams, biodiversity, or farm animals (at least not as much as they assign to their own happiness). Whether any one of us does or not is, therefore, a matter of little practical political importance. Much more important is whether decision-making methods acceptable to a majority of citizens can lead to improvements in our social systems or our collective decision-making. Better conservation is, therefore, every bit as much about improving our human sciences and the political possibilities they illuminate as it is about micrograms per deciliter, parts per trillion, or the like. Kysar’s book is an elegant step in that direction toward a more integrative future.

3 Responses

Thanks for this review — the book went into my shopping cart immediately. I’m curious, does Kysar touch on the subject of the precautionary principle’s treatment internationally? It’s troubling to see that in WTO jurisprudence and in some academic circles, the PP is either subordinated to the logic of CBA, or else CBA is considered to be an implementation of the principle. See, e.g., the WTO interim panel decision (2006) on genetically modified organisms (burden of proof under the PP is to show that something is dangerous before regulating it — similar in effect to CBA à la Sunstein); and P. Ewald & al., Le Principe de précaution (2001).

I have a question for both Jamie and A.J.: Have either of you read mary O’Brien’s Making Better Environmental Decisions: An Alternative to Risk Assessment (MIT Press, 2000)? It seems she defends something like (if not) the precautionary principle under the rubriic of “alternatives assessment.” One attractive feature of her proposal is that it helps make publicly explicit the political and value choices that, as she explains (and as was pointed out earlier in pioneering work by Kristin Shrader-Frechette), are deliberately or inadvertently buried in the CBAs used in environmental decision-making.

Of course it’s not so much value monism per se that is the problem but the nature of the value itself (in this case, economic value, conventionally and crudely understood in the manner of neo-classical economics) which, it is assumed or argued, is instrumental in the realization of other (i.e., a plurality of) values. The problem is that there is a perceived need for a common denominator, a common metric used to assess the comparative worth of these other values and this is at least arguable if not implausible or impossible (at least in the terms of not a few worldviews). Our sundry valuations cannot be reduced to those regnant in today’s marketplace. There are some goods I (we) may not be willing to put a price on….

To Patrick: O’Brien’s book had escaped me till now; I’ll certainly take a look, thanks! And while I can’t recall any citation of Anderson’s book in Regulating From Nowhere (there was a great quote from a piece Tribe did in 1971 on “policy analysis” that was a nice reminder of his few writings on the subject back then), I’d have to say that the expressivism defended by her in that and later work bears clear similarities to Kysar’s expressivist defense of the PP.

To A.J.: The book talks briefly about the PP abroad, but it is mostly aimed at a sort of internal defense. Many thanks for your pointer, too. I’ll check it out!

Finally, fwiw, I have my own doubts that “value” is anything more than an essentially contested concept. It allows us to say there are different “values,” it allows us to say there are intrinsic and extrinsic values, it allows Korsgaard (at least) to say there are “final” and non-final values, and it allows us to say that some values can’t be monetized. I honestly think I agree with all of those propositions — but I’m not sure where, theoretically, that leaves me, except perhaps right back where James, Pierce, and Dewey were over a century ago — or perhaps were Audi’s recent reconstructions of Rossian intuitionism leads. Food for thought, though! Cheers, Jamie